Crooks
emerges as court’s key swing vote
By
David Ziemer
Wisconsin Law Journal
August
24, 2005
In
the Wisconsin Supreme Court's 2004-05 term, Justice N. Patrick Crooks clearly
emerged as the key swing vote, and the justice most frequently in the majority,
while Justice Jon P. Wilcox was the most frequent dissenter. Crooks dissented
only four times, and in 19 cases decided by a vote of four to three, Crooks was
in the majority in all but three.
The
voting of the court this term, Justice Louis B. Butler's first, marks a significant
shift from the court's previous term, in which Justice Patience Drake Roggensack
was most often in the majority, and Chief Justice Shirley S. Abrahamson was most
frequently among the dissenters.
The
term was only the second since Wisconsin Law Journal began tallying the justices'
voting patterns — the 2000-01 term — that Abrahamson was not the most
frequent dissenter.
During
the most recent term, Crooks was in the majority in 87 of the 91 cases in which
he participated, dissenting an astonishingly low four times. That placed Crooks
in the majority in 96 percent of cases.
In
contrast, Justice Wilcox was in the majority in only 74 percent of the cases,
voting with the majority in 67 cases, and dissenting in 23.
Justice
Ann Walsh Bradley was second most likely to be in the majority, dissenting only
10 times, and landing in the majority 80 times, 89 percent.
The
rest of the justices were all in the majority 83 percent of the time, except for
Abrahamson, at 82 percent. Abrahamson and Butler both dissented 16 times. Justice
David T. Prosser and Roggensack dissented 15 times.
Of
the 94 cases that the court decided, 48 cases, or 51 percent, were unanimous,
while 46 cases produced a divided court. Last term, 61 percent of decided cases
were unanimous.
Cases
that produced an evenly divided court were not included, nor were cases dismissed
as improvidently granted, or motions for reconsideration. In addition, State v.
Stenklyft, 2005 WI 71, 697 N.W.2d 769, produced no majority opinion, but three
plurality opinions, and was disregarded in the analysis entirely.
Four
to Three
In
19 sharply-divided cases decided by a four to three vote, Crooks was in the majority
in 16. Abrahamson, Bradley, and Butler were all in the majority in 12 cases (all
the same ones), and dissented in the same 7 cases.
In
contrast, Wilcox and Roggensack dissented in each of the 12 cases in which Abrahamson,
Butler, and Bradley were in the majority, and were in the majority in the seven
in which they dissented.
Prosser
dissented in nine of the cases, and was in the majority in 10.
In
short, with the exception of three cases in which the majority consisted of Abrahamson,
Butler, Bradley, and Prosser, all of the four-three splits consisted of either
Crooks, Abrahamson, Bradley, and Butler; or Crooks, Prosser, Roggensack, and Wilcox.
In
contrast, last term, there were only eight four-three splits, and Roggensack was
in the majority in all eight — the only justice in all eight majorities —
while Abrahamson and Bradley were in the majority in only one of those eight cases.
In
the 2002-03 term, retired Justice William Bablitch was the key swing vote in four
to three cases, and was in the majority most often. In both the 2000-01 and 2001-02
terms, Justice Prosser had that distinction.
Alignment
The
two justices most likely to concur were Abrahamson and Bradley, voting together
in 96 percent of cases, all but 4. The second most frequent aligners were Wilcox
and Roggensack, who voted together in all but 6 cases, a 93 percent rate of concurrence.
Least
likely to concur were Bradley and Wilcox, at only 53 percent, virtually never
on contentious cases, considering that, in 51 percent of the cases, the court
was unanimous. The second least likely combinations were Wilcox and Abrahamson,
and Wilcox and Butler, at 58 percent each.
Criminal
Law
In
criminal law cases, the justices most likely to agree were Abrahamson and Bradley,
concurring in 100 percent of the cases in which they both participated. The next
highest combinations were Abrahamson and Butler, and Butler and Bradley, both
at 96 percent. The fourth highest combination was Wilcox and Roggensack, at 93
percent.
Least
likely to concur were Wilcox and Butler, at only 46 percent.
The
justice most likely to be in the majority in criminal cases was, as when considering
all cases, Crooks, at 93 percent. Second were Abrahamson and Bradley, both at
86 percent. In descending order were Butler at 82 percent, Prosser at 75 percent,
Roggensack at 74 percent, and finally, Wilcox at 64 percent.
Those
results stand in stark contrast to previous terms. Last term, Roggensack was in
the majority in 100 percent of criminal cases, followed by Wilcox at 97 percent.
In each of the court's two previous terms, Abraham-son and Bradley were the two
justices most likely to dissent in criminal cases.
In
both those terms, Bradley was in the majority in only 74 percent of criminal cases.
Abrahamson was in the majority in only 65 percent in the last term, and only 68
percent the term before that.
Torts
and Insurance
In
cases involving torts and insurance law issues, there were dramatic changes, as
well. In the 2003-04 term, Prosser and Wilcox were in the majority of 100 percent
of those cases that the court heard.
This
term, Wilcox was the justice least likely to be in the majority, at only 68 percent,
and Prosser was third least likely to be in the majority, at 78 percent. In the
penultimate position was Abraham-son at 76 percent
Instead,
the justice most frequently in the majority was, again, Crooks, joining the majority
in 100 percent of the cases in which he participated. Second was Bradley at 89
percent, followed by Butler and Roggensack, both at 85 percent.
The
two justices most likely to concur in these cases were Roggensack and Prosser,
voting together in 100 percent of the cases.
The
second most frequent aligners were Abrahamson and Bradley at 95 percent, followed
closely by Wilcox and Roggensack at 94 percent.
Least
likely to vote together were Abrahamson and Wilcox at only 44 percent, and Abrahamson
and Prosser, at only 50 percent.
Explanations
"By
any measure, this was an extraordinary year at the Wisconsin Supreme Court,"
observed Joseph D. Kearney, Dean of Marquette University Law School. "From
tort law to criminal law, the court was willing to depart from what had seemed
to be settled approaches. The end result was a set of at times astonishing decisions."
Kearney
noted that, in his capacity as a member of the bar, he had represented one of
the unsuccessful amici urging against the Supreme Court's lead-paint decision,
but he pointed to such other decisions as the decision striking down the legislative
caps on medical malpractice awards and the abandonment of the "lockstep"
doctrine under which Wisconsin had traditionally followed U. S. Supreme Court
precedent in interpreting analogous provisions of the Wisconsin Constitution.
Michael
McChrystal, a professor of legal ethics and torts at Marquette, suggested the
addition of Justice Butler played a significant role in the changes. McChrystal
observed, "Justice Butler's joining the court after Justice Sykes' appointment
to the Seventh Circuit brought about changes that really affected some areas,
especially personal injury. The change brought about a shift in a court that had
been very closely divided."
Retired
Justice Janine P. Geske noted Crooks' role in the past term: "I know many
people are surprised with Justice Crooks' votes on a few of the very high profile
cases this last term. The problem with those of us on the outside guessing why
a justice voted a particular way is that the internal discussions both on these
and prior cases, along with extensive research and writing, often have the most
impact on an ultimate vote.
"Many
would like to think that the members of the court just quickly vote politically
on how a case should turn out and then someone figures out how to write it. It
does not work that way. The justices take all of these cases very seriously and
work through them in light of prior case law. I wish people could know all the
hard work that goes into each opinion."
